NEW YORK—Following the unsealing of the indictment against former President Donald Trump on Tuesday, legal experts say the charges laid out—and left out—in the indictment are vague, duplicitous, disconnected, and meritless.
“There is no part of the case that is not weak,” Alan Dershowitz, an attorney who taught law at Harvard Law School for nearly 50 years and was part of Trump’s impeachment defense team in 2019, told The Epoch Times in an interview on Wednesday.
Trump was charged with 34 counts of felony-level falsifying business records, Chris Conry, a prosecutor at the office of Manhattan District Attorney Alvin Bragg, revealed during Trump’s arraignment hearing on Tuesday.
The charges against Trump consist of two parts, a main charge—falsifying business records—and an auxiliary charge, which Bragg did not explicitly identify but offered several possibilities.
The charge of falsifying business records drives Bragg’s case. In the prosecution’s version of the story, Trump directed one of his lawyers, Michael Cohen, during the 2016 election to pay adult film actress Stormy Daniels $130,000 with the intention of preventing her from speaking about an alleged affair between her and Trump in 2006. Trump then allegedly repaid Cohen through monthly checks and documented that payment as legal expenses in the Trump Organization.
“Each check was processed by the Trump Organization and illegally disguised as a payment for legal services rendered pursuant to a non-existent retainer agreement,” Bragg’s office said in a statement.
A falsifying business records charge, by itself, is normally a misdemeanor-level offense with a statute of limitations of two years. That would have likely expired considering Trump allegedly made the payment to Daniels in 2016, or seven years from the present time.
In order to overcome this statute of limitations restriction on the charge against Trump, Bragg had to prove that the falsification of the business record charge was done to conceal another crime, which is where the auxiliary charge comes in.
While that auxiliary charge was not identified in the statement of facts and the indictment, Bragg said in a Tuesday statement that Trump committed the falsification of business records offense with an intention to “conceal damaging information and unlawful activity from American voters before and after the 2016 election.”
Together, the two parts elevate what is normally a misdemeanor to a felony, which carries a statute of limitations of five years.
A provision in New York law states the statute of limitations clock is paused if the defendant is “continuously” out of state, which may extend that five-year period to the present time—but this fact will likely be disputed in court.
Another charge that may play into the case is whether the alleged mischaracterization of the payment to Daniels is done “for tax purposes,” according to the indictment Bragg’s office published on Tuesday.
According to Dershowitz, the nature of the non-disclosure agreement Cohen signed with Daniels in 2016, according to Cohen’s guilty plea, shows that Bragg’s indictment is based on a fundamentally flawed assumption.
“It’s based on the following assumption: for Trump not to have been prosecuted after legally paying hush money, he had to put on publicly available forms the very fact that he paid money to keep secret, namely, the fact that he was accused of having an adulterous affair with a former porn star,” Dershowitz explained.
Dershowitz indicated that this would have defeated the agreement’s original purpose, noting that the payment was “probably legal.”
“So the entire indictment is based on a deep fallacy. There’s nothing strong about it. You can’t create strength—multiple weaknesses, yes—there are 34 bad counts, and 34 bad counts do not create a single good count,” Dershowitz said.
Dershowitz’s view is echoed by former Chairman of the Federal Elections Commission Bradley Smith, who said that the hush money should not be categorized as a campaign contribution and thus cannot be used to support a campaign finance violation.
Bragg would come up with the auxiliary charge sometime in the next few months, and a possible charge is a federal campaign finance violation.
According to Smith, the logic of the prosecutor goes, if the purpose of a campaign expenditure is to influence an election, then that expenditure should be documented as campaign expense; therefore, the logic goes, Trump should have documented that payment as a campaign expense, instead of as legal expense in the Trump Organization.
There’s a problem with that logic, Smith says.
“The problem with that is that the statute … has been interpreted as requiring not a subjective intent … rather it’s an objective test—and it excludes things that people might pay for [if] they were not running for office,” Smith said.
In other words, Smith is saying that it doesn’t matter whether Trump wanted to influence the 2016 election, but the more important question is whether the purpose of the “hush money” can be reasonably considered merely an expense to hide an embarrassing past.
“For example, as I said, if you decide you’re going to run for office, and you paid a divorce attorney to try to seal up your messy divorce records … you might do that [for the purpose] that you’re running for office—but that’s not legally considered for the purpose of running for office. That’s not a campaign expenditure,” Smith said.
“And not only are you not required to pay with campaign funds—it is actually illegal to pay it with campaign funds,” the expert added. “You don’t really have the conspiracy to cover up another crime. You just have a conspiracy to cover up an embarrassing situation.”
John Malcolm, vice president of the Institute for Constitutional Government at the Heritage Foundation, highlighted that the Department of Justice (DOJ) dropped a similar case in another state.
John Edwards, a former North Carolina senator and former vice-presidential candidate, was charged by the federal government with federal campaign finance violations for allegedly paying off a woman with whom Edwards was having an affair.
“He got charged that the payments came from friends of his, and that they were illegal campaign contributions,” Malcolm said.
“His argument was: these were payments by very wealthy personal friends of mine, and they were paying this not because I was running for whatever office I was running for. They paid this because I wanted to hide this information from my wife, who was suffering from cancer at the time.”
Edwards’s case went to trial, and he was acquitted on one of the charges. The jury couldn’t reach a verdict on the remaining five charges, and the Department of Justice dropped the case.
That defense could be applied to Trump’s case, Malcolm said.
“What [Trump] could say is … I didn’t want to embarrass my family. So, I paid them not to tell their story. I would have paid these women whether I was running for president or not,” Malcolm said.
“So, if he can establish that, one, he thought these were legal services, or two, that he paid these funds out of personal funds, and he would have made these payments regardless of whether he was running for office, then these are not illegal campaign contributions.”
Experts agreed the fact that a crucial element of the charge—the auxiliary charge Bragg used to elevate the case from a misdemeanor to a felony—has not been disclosed in the indictment of a former president raises several legal questions.
This issue, according to trial attorney John O’Connor, is the “weakest part of this case.”
“First, no crime was identified in the indictment. Number two, the prosecutor named several possible crimes, that could be hidden by the false entry,” O’Connor said. “But that’s an improperly charged crime. You cannot have alternative crimes.”
“In other words, he is saying, ‘Well, there are several that he could have been covering up.’ Well, that’s known as a duplicitous indictment,” O’Connor said.
“You cannot say, the ‘defendant committed a crime because of either A, B or C, take your pick,’ because some jurors might find the defendant guilty on A, some on B, someone C, but none of them unanimously.”
The second problem with that issue is the lack of specificity in the indictment, Mike Davis, president and founder of Article III Project, a legal nonprofit, told The Epoch Times in an interview. He said that this vagueness violated the constitutional rights of the defendant.
“Bragg brought the first indictment of a former president and didn’t even allege the legal basis for his invasion,” said Davis, who clerked under U.S. Supreme Court Justice Neil Gorsuch. “It should be dispositive, meaning under the 14th Amendment to our U.S. Constitution, Americans have the right to due process of law—and due process includes fair notice of the allegations against you so you can defend yourself in court.”
“Alvin Bragg got up in front of the TV cameras yesterday and bragged that he didn’t need to include the legal basis in his indictment,” Davis said. “And that’s a clear violation of the 14th Amendment to the U.S. Constitution, regardless of what Democrat judges and prosecutors in New York think.”
While it remains unclear at present what criminal conduct Trump is concealing, prosecutors signaled at the hearing and the subsequent press conference that the charge may be related to an intention to undermine the integrity of the 2016 election.
“The defendant, Donald J. Trump, falsified New York business records in order to conceal an illegal conspiracy to undermine the integrity of the 2016 presidential election,” one of the DA office’s prosecutors, Chris Conroy, said at the hearing.
But according to experts, the prosecutors would have difficulty bringing charges if Bragg approached the case with the backdrop that Trump intended to commit election interference.
“These are the kinds of crimes that people, usually, if they are convicted, there’s not even a basis for a misdemeanor conviction. They usually get a $25 fine or something like that,” Dershowitz said. The expert characterized the prosecution of Trump, a former and potentially future president, as election interference.
Again, though it is unclear as of writing what criminal conduct Trump is concealing, prosecutors signaled at the hearing and the subsequent press conference that the charge may be related to an intention to undermine the integrity of the 2016 election.
“The defendant, Donald J. Trump, falsified New York business records in order to conceal an illegal conspiracy to undermine the integrity of the 2016 presidential election,” one of the DA office’s prosecutors, Chris Conroy, said at the hearing.
Dershowitz described Bragg’s prosecution of Trump as politically motivated, considering that Trump will be likely running against President Joe Biden in 2024 and that it is the “weakest case” he has seen in his six decades of experience practicing criminal law.
“It’s very dangerous—it means that district attorneys can indict their own political enemies,” Dershowitz said in an interview last week, noting that he predicted this outcome in his book, “Get Trump,” which describes a two-tiered system of justice, singling out Trump.
“It really endangers the rule of law for all Americans: today, it’s Trump; tomorrow, it’s a Democrat; the day after tomorrow, it’s your uncle Charlie, or your niece, or your nephew,” Dershowitz added.
“In 60 years of practice, this is the worst case of prosecutorial abuse I have ever seen,” the scholar said. “What’s really unprecedented is not the indictment of a past president, but the indictment of a potential future president who was running against the head of the party of the man who indicted him.”